These materials give general information about security deposits in Illinois. They do not provide all there is to know about security deposits, but they do try to give you helpful information about these deposits under Illinois law. Your area may have a local landlord-tenant ordinance which gives you additional rights or responsibilities, and federally subsidized and public housing may have separate rules.

The following information is not meant to be legal advice or to replace the advice you should receive from an attorney. There are times when it would be wise to consult a lawyer and other times when it is essential to do so. Always remember, each individual case is unique. If you have additional questions or want legal advice, contact the Prairie State Legal Services office nearest you.

What is a Security or Damage Deposit?

A security deposit is money a renter gives to the landlord at the beginning of a lease (usually before the renter moves into the premises). A deposit may also be made to hold a unit while the landlord does a credit check, calls prior landlords or takes other steps to decide whether to approve a tenant. A deposit may also protect the landlord in the event he or she holds a unit for a tenant, but the tenant decides not to move in; the landlord will then keep the deposit.

IMPORTANT: a security deposit is not a substitute for payment of rent.

The lease will usually state the purpose of the security or damage deposit. For example, the lease may state that the deposit may only be used:

• to clean the property at the end of the lease term, if the renter did not leave the property in a clean condition;
• to pay utility bills, if the renter did not pay the bills; or
• to pay rent, if the renter did not pay the rent.

If there is no lease or the lease does not state the purpose of the deposit, the deposit will usually be used for cleaning and repairing damages that exceed normal wear and tear. Note that as a tenant you should not be held liable for normal wear and tear.

How Much Can A Landlord Charge for a Security Deposit?

There is no state law in Illinois limiting the amount which a landlord may charge as a security deposit. Most commonly, landlords charge an amount equal to one or two months' rent. Some landlords charge two deposits: for example, one in case of damages and the other an advance payment toward the last month's rent. Landlords also may charge an additional deposit for keys or if you have pets.

If you live in subsidized housing (for example, if you have a Section 8 certificate or voucher), the landlord may charge you a deposit similar to deposits being charged by private landlords in your area. For example, if the common deposit in your area is one month's rent, your landlord may charge a deposit equal to the full monthly rent - including the housing authority's portion. The old law, limiting deposits in subsidized housing to the amount of your share of the rent, no longer is in effect.

IMPORTANT NOTE: If you are not able to pay the full deposit when you move in and your landlord agrees to let you pay over time, be sure to get the payment agreement in writing. The written agreement should include details such as how long you will have to pay, and how much each payment will be. Getting the agreement in writing will be important for avoiding problems later. When you make payments under this agreement, it is important that your checks or receipts say whether the payment is intended as rent or as a payment toward the security deposit.

I put down a deposit to hold an apartment, but I decided not to take the apartment. The landlord is refusing to return my money. Shouldn't he give the deposit back to me?

You may be able to get your money back, but not necessarily. Most landlords will take the position that a deposit to hold an apartment is non-refundable and they are not likely to return the deposit voluntarily. The first question in determining whether a deposit is refundable is this: did you sign any agreement when you paid the deposit? If you did, the agreement may set out the terms of the deposit and whether it is refundable. Even if there is no written agreement, if the landlord told you the deposit was non-refundable at the time you paid it, he has a claim that he can keep it. If there was no discussion of whether the deposit was refundable, then whether you can get it back will depend on things such as how long the landlord held the apartment for you, whether he turned away other possible tenants while he held the apartment, and whether he tried and was able to rent the apartment again quickly after you changed your mind. If the landlord lost rent while holding the apartment for you, it will be hard for you to claim you should get your money back.

If the reason that you did not move in is that the landlord failed in one of his duties - for example, that he failed to make important repairs - your claim to the refund will be stronger. If the landlord does not agree to return your deposit, your option, if you believe the money is owed to you, will be to file suit in small claims court, as explained later in this booklet. This process may not be quick. You may not have the deposit back in time to use it for another apartment. Therefore, it is wise to think carefully before putting down a deposit to hold an apartment.

I plan to move out at the end of the Month. I paid a deposit. Do I need to pay the last month's rent?

Although your landlord will keep your security deposit if you leave your apartment owing rent, a security deposit is not a substitute for payment of monthly rent. If you do not pay the last month's rent, you are taking a risk: you may be evicted for non-payment of rent. If you do not pay your rent, your landlord may serve you with a five-day notice for the non-payment of your rent. This notice would be valid assuming you had no other claim that you did not owe rent; the security deposit is not considered rent for that month. If you do not pay in these five days, you may be sued for eviction. Depending on how quickly your local courts process eviction cases, you may have to move before the end of the month. You may also have a judgment against you for the unpaid rent, for court costs and, if the lease allows, for your landlord's attorney's fees.

I need my security deposit to pay the security deposit on a new apartment. When does my landlord have to give the security deposit back to me?

Unfortunately, unless your landlord agrees, you are not likely to get your security deposit back before you move. The law allows the landlord to keep your deposit until after you move out, so that he can see the condition in which you leave the unit.

If you live in a building or complex which has 5 or more units: Illinois law requires that in order to keep your deposit the landlord must send a list of damages and an estimate of repair costs within 30 days of your moving out. If the landlord does not send you this list within the 30 days, he must return the entire deposit. He has 45 days from when you move out to get the deposit back to you. If you live in a building with 4 units or less, in a house, or if you rent a condominium from a landlord who owns that unit but does not own the building, the law does not establish a specific time for the landlord to return the deposit, and does not require the landlord to give you an itemized list of damages. The landlord still should return the deposit within a reasonable time.

What can I do to get my security deposit back from my landlord?

One of the most important things you can do to ensure that you will get your security deposit back needs to be done when you move in. Within 72 hours of when you first move in, make a written list of all the minor and major damages in the property. This list should include the general condition and cleanliness of the property. You and your landlord should sign and date this list. If your landlord does not sign the list, have a reliable third party sign the list after a full inspection of the property. Make a copy of the list for your landlord. Make another copy to leave for safekeeping with a trusted friend or family member. Be sure to keep the original. You may want to take pictures of any serious or minor problems which exist when you move in.

Here is what you can do to get your deposit back when you are ready to move out:

• Leave the property in the same condition as it was when you moved in, with the exception of normal wear and tear. Check your lease to see what things you are required to do before you move out. For example, the lease may say you should shampoo the carpets or wash all the floors.
• When you move out, check out with the landlord if possible. If your landlord makes any report about the condition of the property, have her make a copy including her signature and date. If she does not make a report, make your own inspection report and have your landlord sign and date it. If your landlord does not sign it, have a third party sign and date your report after a full inspection. If you think you may have a disagreement with the landlord over whether you left the unit in good condition, be sure to have a third party inspect the unit. Take pictures of the conditions at the time you move out.
• Leave a forwarding address so that your deposit may be refunded.
• Send a letter and ask for the security deposit back from your landlord. Keep a copy of this letter.

If the landlord returns your deposit by check, but the check is written for less than the amount you believe should be returned, do not cash the check. By cashing the check, the landlord may assume you agreed to this amount. If you must cash the check, sign the back with "in partial payment." Be aware that this may not insure that you will get the full amount later.

I have asked my landlord for the entire amount of the deposit, but the landlord will not return it. How can I get my deposit back?

If your landlord does not return the deposit after you ask for it, and the 45 days have passed, you will need to file a lawsuit against the landlord in court. Small claims court is available for cases seeking amounts up to $5,000.00. You can file a suit in small claims court with or without an attorney. Consult your local courthouse on its procedures, or ask your local legal services office for a copy of its pamphlet on using the small claims court. In some cases, you may be able to find an attorney who will take your case without your having to pay a fee up front. We explain more about that later in this pamphlet.

IMPORTANT NOTE: If the judge finds that your landlord was required to give you the list of alleged damages, (that is, your building or complex has five or more units for which he is the landlord), failed to give the list to you, and did not return your deposit, the judge may order your landlord to pay you twice the amount of the deposit. Be sure to ask the judge to order this and include the request in your court Complaint.

CAUTION: If you file a suit against your landlord, your landlord may file a countersuit claiming you owe him money for rent or damages beyond what is covered by the deposit. The landlord may be allowed to make this claim even if he failed to give you the list of damages required by law.

I cannot afford to pay the filing fee to sue in small claims court. Can I still sue my landlord?

Yes, if you have limited income and cannot afford to pay the filing fees. Ask the Clerk of the Court to give you a Petition to Proceed As A Poor Person. (This form is sometimes called a Pauper's Petition.) You will need to supply financial information on the Petition. A judge will decide whether you qualify to file the case without paying filing fees.

NOTE: If you win your case, the landlord should be ordered to pay your filing fee, and to repay you if you paid the fee. If you lose, you are likely to be required to pay the landlord for the fee he paid to the court as the defendant (person who was sued) in the case, and, if the lease for the rental unit allows, for the landlord's attorney's fees.

How can I find an attorney to help me get my security deposit back?

Legal services offices usually do not have enough attorneys to represent clients in court to recover security deposits. You may decide to represent yourself in small claims court, but you may be able to find an attorney willing to take your case. When a judge finds that a landlord of a 5-unit or larger building or complex fails to give the statement of damages or return the deposit, the judge should require the landlord to pay the tenant's lawyer's fee.

What are my chances of winning in court?

Every case is different, but here are some things to consider before you file your case

The landlord generally should not be able to keep the deposit for conditions which are the result of "normal wear and tear." For example, if you move after several years in one apartment, you can argue that you should not be charged for repainting the unit or replacing worn carpet.:

Your landlord will have the right to file a "counter suit" against you in your court case if he claims that you owe him money beyond the amount of the deposit. The landlord may be allowed to make this claim even if he failed to give you the list of damages required by law.

Some tips for court:

• Organize what you plan to say before you go to court. Remember: the judge will not know anything about your case ahead of time. When you tell your side, be sure to cover all the basic points: the address of the unit you rented, the name of the landlord, the fact you paid the deposit, the amount you paid, when you moved out, the fact you asked for the deposit back, and the fact that the deposit wasn't returned.
   
• Bring photographs of the unit at the time you moved in and at the time you moved out.
   
• Bring the receipt for the security deposit and all of your rent receipts to court.
   
• Bring witnesses. Witnesses need to testify in person; letters from your witnesses cannot be given to the judge because they are considered hearsay. If the witness is a housing authority or government official, or anyone you are not certain will come to court on his or her own, you will need to subpoena the witness ahead of time.
   
• The small claims court is open to the public. You can sit in on a court session before the date your case is set to get a better idea of what may happen in court.

Does my landlord have to pay me interest on my deposit?

Illinois law requires landlords to pay interest on some security deposits. Interest is required only if the apartment is in a building or complex of 25 units or more. (If you rent a condo unit from a landlord who does not own 25 units, you will not be entitled to interest.) Interest is required only when the deposit is held six months or longer; interest is not required in public housing under this particular state law.

When this law was written, it set the interest rate at 5 percent. As of August 20, 1993 that law has been changed. The amount of interest is now based on interest rates paid by the largest bank in Illinois, which is currently (2003) Bank One. The rate used is the rate paid as of December 31 of the year prior to the year the lease was signed. For example, for a lease signed April 1, 1998, the relevant interest rate is the rate as of December 31, 1997 or 2.5 percent per year. Below is a chart setting out these interest rates. We have included interest rates back to the time the law first tied security deposit interest rates to bank rates, so that if you have lived in your apartment several years but not received the interest, you will be able to figure out the amount owed to you in back interest. For example, if you signed a lease beginning April 1, 1998 and ending March 31, 1999, and you paid a deposit of $500.00, at the end of the lease the landlord will owe you interest of 2.5 percent. Calculated using simple interest this would be $500.00 x 2.5 percent or $12.50 if the landlord paid you the interest on time, at the end of the year. Calculating the interest as compound interest would give a slightly higher amount; the law is not clear, but there is a good argument that compound interest is allowed. To learn the amount calculated using compounded interest, you should visit your library or use a calculator available over the internet.

 

Rates Paid by the Bank One, National Association on Minimum Deposit Passbook Savings Accounts
As of Dec. 31, 2002	Leases signed in 2003	0.40% per year
As of Dec. 31, 2001	Leases signed in 2002	0.45% per year
As of Dec. 31, 2000	Leases signed in 2001	1.73% per year
As of Dec. 31, 1999	Leases signed in 2000	1.73% per year
As of Dec. 31, 1998	Leases signed in 1999	1.88% per year
As of Dec. 31, 1997	Leases signed in 1998	2.5% per year
As of Dec. 31, 1996	Leases signed in 1997	2.5% per year
As of Dec. 31, 1995	Leases signed in 1996	2.75% per year
As of Dec. 31, 1994	Leases signed in 1995	2.75% per year
As of Dec. 31, 1993	Leases signed in 1994	2.5% per year
As of Dec. 31, 1992	Leases signed in 1993	2.5% per year
As of Dec. 31, 1991	Leases signed in 1992	4.0% per year
Interest is Compounded Daily

How can I collect the interest?

The landlord is to pay the interest within 30 days after the end of each 12-month rental period. If you move out before the end of a full year, the law is not clear about when you should be paid, but arguably you should be paid within 30 days of when you move out. The landlord can pay the interest in cash or by rent credit. If the landlord does not pay the interest you believe you are entitled to receive, ask the landlord to pay you. If you do not receive the interest, make the request in writing and keep a copy of this letter. Note that if the landlord sells the building both landlords are responsible for making sure you are paid the interest.

If the landlord still does not pay, you can file a case in small claims court. The law states that the landlord can be ordered to pay you not only the interest, but an amount equal to the deposit itself. Again, be sure to ask the judge to order this. The judge should also order the landlord to pay your attorney's fees, if you have a lawyer and if the judge finds that your landlord "willfully" failed or refused to pay you the interest. Note that your lawsuit may ask for interest as far back as ten years, if your landlord owes you that interest and if you had written leases. Lawsuits to recover money under an oral lease or contract (if you didn't have a written lease) can only go back five years.

About Prairie State Legal Services